McDermott v. Modern Woodmen of America

• Decision Date: 20 January 1903
• Parties: McDERMOTT v. MODERN WOODMEN OF AMERICA.
• Court: Missouri Court of Appeals

71 S.W. 833

97 Mo. App. 636

McDERMOTT v. MODERN WOODMEN OF AMERICA.

Court of Appeals at St. Louis, Missouri.

January 20, 1903.

BENEFIT INSURANCE—FOREIGN SOCIETIES— APPLICATION—WARRANTIES—CONDITION OF HEALTH—CONSULTATION OF PHYSICIAN.

1. Under Act March 16, 1897, permitting fraternal insurance associations organized under the laws of other states to do business in Missouri on the terms prescribed by the act, which act was incorporated into Rev. St. 1899, as sections 1409, 1410, a foreign fraternal association, which has complied with the Missouri laws relating to domestic, fraternal, beneficiary associations, is entitled to all the immunities and is subject to the burdens pertaining to such societies as prescribed by Rev. St. 1899, c. 12, art. 11.

2. Application for a benefit certificate provided that the answers to the questions contained therein should be warranties. The applicant answered an interrogatory as to whether he was in sound mental and physical health, and free from disease or injury, at the date of the application, in the affirmative. Held, that such interrogatory referred only to maladies or symptoms likely to shorten life, and hence evidence that the insured, prior to the application, had consulted a physician with reference to a pain in the stomach, indigestion, and congestion of the liver, did not constitute a breach of warranty, provided such ailments were merely transient in character, and amounted only to a slight indisposition.

3. Where an applicant for a benefit insurance warranted that his answers to the questions propounded in the application should be true, and falsely stated that he had not been treated by or consulted a physician regarding any personal ailments within seven years preceding the application, such false answer constituted a breach of warranty relieving the insurer from liability, without regard to the character of the ailment for which such physician was consulted.

Appeal from circuit court, Clark county; Edwin R. McKee, Judge.

Action by Bertie McDermott against the Modern Woodmen of America. From a judgment in favor of plaintiff, defendant appeals. Reversed.

W. T. Rutherford, for appellant. Davis & Whiteside, for respondent.

GOODE, J.

On March 16, 1901, the appellant, the Modern Woodmen of America, which is a fraternal insurance company (or this case was tried on that theory) organized under the laws of the state of Illinois, issued a benefit certificate to Robert L. McDermott in favor of the respondent, Bertie McDermott, for the sum of $2,000. The certificate or policy was issued in Clark county, Mo., the appellant company having complied with the laws of this state, and being entitled to do business in it. McDermott died in the city of St. Louis, October 18, 1901, after a surgical operation, intended to relieve him from a malignant tumor on his neck, and, the defendant company having refused to pay the amount called for in the benefit certificate, the present action was instituted to recover it. The defense is based on the alleged false answers to certain questions propounded to the deceased in his application for insurance, which answers are asserted to have been warranties of the truth of the matters stated in them. Those questions and answers were as follows: "(14) Have you, within the last seven years, been treated by or consulted a physician or physicians in regard to personal ailment? No. If so, give dates, ailment, and physician or physicians' name and address. (15) Are you now of sound mind and health, and free from disease and injury, of good moral character and exemplary habits? Yes. (16) Have you ever had any local disease, personal injury, or serious illness? No." No showing was made that the answer to question 16 was false, other than was included in the proof relating to the answer to question 15. It was proven that on the 9th day of February, and prior to the issuance of the certificate in March, McDermott had consulted Dr. Bridges, of the town of Kahoka, complaining of pain in the stomach and indigestion, and that said physician gave him a prescription. On the 23d day of February McDermott made the same complaints, and was given the same prescription, which was one commonly administered for indigestion. He afterwards called in Dr. Bridges on the 15th day of April, who found him at his home suffering from liver complaint, and Dr. Bridges treated him from that time until a short time before he died. There was testimony tending to prove he had cancer of the stomach from which developed the malignant tumor on his neck under the point of the jaw, and that he died from exhaustion, partly caused by his disease and partly by the surgical operation. There was also testimony that McDermott looked healthy when he took the insurance, was able to do hard and continuous labor, and was regarded by his acquaintances as a healthy man; that the appellant's physician examined him, and recommended him as a first-class risk. It was also testified by a physician that no one could say whether or not the disease that killed him was present in an incipient state when he was prescribed for in February. Appellant contends the foregoing proof showed conclusively the falsity of the answers made by McDermott to questions 14 and 15 in his application; while the respondent insists that the testimony showed McDermott's illness when he consulted Dr. Bridges in February, before taking the insurance in March, was of so trifling a nature as not to constitute a personal ailment, local disease, or serious illness within the meaning of the application, or, that at all events, it was for the jury to say whether he did or did not answer falsely, and whether there had been a breach of warranty, if the answers in the application amounted to warranties. The trial court took the respondent's view of the matter and gave, at the latter's request, the following instructions over the objection of appellant: "(1) In construing the proposition as to whether or not the plaintiff's deceased husband had been treated by or consulted a physician, as contemplated in the application for the contract of insurance sued on, you are instructed that merely calling into a doctor's office for medicine to relieve a temporary indisposition, not serious in its nature, or consulting concerning some indisposition of a trivial nature, would not be being treated by or consulting a physician, as contemplated in the said application. (2) One of the defenses relied upon by defendant in this case is that the applicant falsely answered the following question in the application upon which the contract of insurance sued on was issued, to wit: `Are you now of sound body, mind and health, free from disease or injury?' This question was answered, `Yes.' The jury are instructed that sound body, mind, and health, and free from disease or injury, means that at the time of the application the insured had no grave, important, or serious disease. It means a state of health free from any disease or ailment that affects the general soundness and healthfulness of the system generally, and not a mere indisposition, which does not tend to weaken or undermine the constitution of the insured. A mere temporary ailment or indisposition, which does not tend to weaken or undermine the constitution at the time of making the application, would not render a policy void. (3) The jury are instructed that, practically speaking, a disease must have some time of commencement. On one day the victim may be free from disease, and on the next day the disease may be said to have commenced. There may be bacilli or premonitory symptoms of a disease, yet it may not have progressed so far as to be actually termed a disease. So, in this case, in the months of February and March, prior to the taking of the application and delivery of the policy in this case, there may have been premonitory symptoms of disease that would not arrive at the importance of the disease itself; and you are therefore instructed that the mere premonitory symptoms could not, in the first instance, be recognized as the existence of a specific disease." This instruction asked by appellant was refused: "(a) In the application made by McDermott (which is undisputed) for the benefit certificate sued on the said McDermott was asked in said application the following direct and specific question: `Have you within the last seven years been treated by or consulted any physician or physicians in regard to personal ailment?' and in answer to said question said McDermott answered, `No.' And if the jury believe, from the greater weight of the evidence in the cause, that said answer was not full, complete, and literally true, then the plaintiff cannot recover in this case, and it is immaterial as to whether or not such ailment was slight or serious, or even merely temporary." These instructions were given at appellant's request: "(1) The court instructs the jury that in this case you will look for the contract to be enforced between plaintiff and defendant in the benefit certificate, which is undisputed, and in the application therefor, which is undisputed, and in such of the defendant's by-laws as have been read in evidence, and you are to give all of these elements of the contract equal consideration in determining the contract sued on in this case. (2) In the application of Robert L. McDermott for the benefit certificate sued on you will find numerous statements and answers to questions as to his present and past health. You are instructed that said application and contract is what is known in law as a strict warranty, and that each and all of the answers and statements contained in said application must have been full, complete, and literally true before the plaintiff can recover in this action. (3) In the application made by McDermott (which is undisputed) for the benefit certificate sued on the said McDermott was asked in said application the following direct and specific question: `Are...